[§667-53]  Conversion to judicial foreclosure; residential property; conditions.  [Repealed on December 31, 2012.  L 2011, c 48, §45(4).]  (a)  An owner-occupant of a residential property that is subject to nonjudicial foreclosure under part I or II may convert the action to a judicial foreclosure provided that:

     (1)  A petition conforming to section 667-54 shall be filed with the circuit court in the circuit where the residential property is located, stating that the owner-occupant of the property elects to convert the nonjudicial foreclosure to a judicial foreclosure proceeding no later than thirty days after the foreclosure notice is served on the owner-occupant as required by section 667-5 or 667-22;

     (2)  Within forty-five days of the filing of the petition, all owner-occupants and mortgagors of an interest in the residential property whose interests are pledged or otherwise encumbered by the mortgage that is being foreclosed and all persons who have signed the promissory note or other instrument evidencing the debt secured by the mortgage that is being foreclosed, including without limitation co-obligors and guarantors, shall file a statement in the circuit court action that they agree to submit themselves to the judicial process and the jurisdiction of the circuit court; provided further that if this condition is not satisfied, the circuit court action may be dismissed with prejudice as to the right of any owner-occupant to convert the action to a judicial proceeding, and the mortgagee may proceed nonjudicially;

     (3)  Filing a petition pursuant to paragraph (1) shall automatically stay the nonjudicial foreclosure action unless and until the judicial proceeding has been dismissed;

     (4)  The person filing the petition pursuant to paragraph (1) shall have an affirmative duty to promptly notify the Hawaii attorney who is handling the nonjudicial foreclosure about the filing of the complaint for conversion;

     (5)  All parties joined in the converted judicial proceeding may assert therein any claims and defenses that they could have asserted had the action originally been commenced as a judicial foreclosure action; and

     (6)  Notwithstanding chapter 607, the fee for filing the petition shall be not more than $525, of which $250 shall be deposited into the mortgage foreclosure dispute resolution special fund established under section 667‑86; provided that if the mortgage foreclosure dispute resolution program under part V has not yet been implemented, the filing fee shall be not more than $300.

     (b)  This section shall not apply to foreclosures of association liens that arise under a declaration filed pursuant to chapter 514A or 514B.

     (c)  This section shall not apply to a foreclosure for which the mortgagor has elected to participate in the mortgage foreclosure dispute resolution program pursuant to part V.

     (d)  The judiciary may create and adopt a form for a conversion petition. [L 2011, c 48, pt of §5]

 

Note

 

  Conditions for owner-occupants undergoing nonjudicial foreclosures and electing to convert to judicial foreclosure.  L 2011, c 48, §37.

 

Rules of Court

 

  Temporary Rules for Implementation of the Conversion Proceeding Established by Act 48, §5 of the 2011 Hawaii Session Laws.